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2012 DIGILAW 1010 (HP)

Sandesh Kumari v. Kishan Chand

2012-12-19

DHARAM CHAND CHAUDHARY

body2012
JUDGMENT Dharam Chand Chaudhary, Judge. Aggrieved by the decree dated 18.1.2002 passed in civil appeal No.64 of 1994 by learned District Judge, Una declaring deceased Kishan Chand, predecessor-in-interest of respondents No.1(a) to 1(g) [hereinafter referred to as “the plaintiffs”] and respondents No.2 to 9 and 10(a) to 10(e) (hereinafter referred to as “the proforma defendants) owner in possession of the suit land and mutation No.3611 (Ex.A-6) as null and void as well as restraining the appellants (hereinafter referred to as “the contesting defendants) from causing interference in the suit land by a decree of permanent prohibitory injunction after reversing the decree of dismissal of the suit passed by the trial Court in Case No.587/1989, dated 25.3.1994, the defendants have approached this Court by filing the present appeal for quashing and setting aside the same. 2. The challenge to the impugned decree is on the grounds, inter alia, that the lower appellate Court having mis-read and mis-appreciated the evidence available on record, erroneously reversed the well reasoned judgment and decree passed by the trial Court. Mutation, Ex.A-6 allegedly is attested in favour of the defendants on the basis of judgment dated 25.4.1985 of learned Sub Judge 1st Class, Amb and not on the basis of judgment Ex.R-2. The lower appellate Court erroneously placed reliance on judgment Ex.R-2 while quashing the mutation Annexure A-6. In jamabandi for the year 1966-67 Ex.D-3, the name of predecessor-in-interest of the plaintiffs though was there, however, such entries were corrected in Consolidation and the same were nowhere challenged by the plaintiffs. Rapat Rojnamcha Vakyati, Ex.D-1/ DW-2/A, whereby the correction in favour of the predecessor-in-interest of plaintiffs was made in the revenue record is merely a waste paper as such entries were never confirmed by any revenue officer. The lower appellate Court was wrong while presuming that the predecessor-in-interest of the plaintiffs remained in continuous possession of the suit land as tenant. Misreading and mis-construction of oral and documentary evidence has resulted in wrong findings. 3. The appeal has been admitted for hearing on the following substantial question of law:- 1. Whether the impugned judgment and decree of District Judge is result of misreading and misconstruction of the evidence on record? 4. The subject matter of dispute in the lis is land measuring 14 kanals 14 marlas entered in khewat No.278, khatauni No.438 bearing khasra Nos. 1936 and 1939 situate in village Nakroh, Tehsil Amb, District Una. Whether the impugned judgment and decree of District Judge is result of misreading and misconstruction of the evidence on record? 4. The subject matter of dispute in the lis is land measuring 14 kanals 14 marlas entered in khewat No.278, khatauni No.438 bearing khasra Nos. 1936 and 1939 situate in village Nakroh, Tehsil Amb, District Una. The challenge in the suit is to mutation No.3611 (Ex,A-6) attested qua suit land in favour of deceased defendant No.1, Brahmi Devi on the ground that the plaintiffs and proforma defendants were not party to the suit in which the judgment on the basis whereof the mutation was attested in favour of the defendants being without their notice and knowledge and behind their back, is a nullity and has no binding effect upon them who having inherited the suit land from their father Matabu, who was in possession of the suit land in the capacity of non-occupancy tenant, have become owners in possession thereof. 5. On the other hand, there is denial to the plaintiffs’ case that their father was in possession of the suit land in the capacity of non-occupancy tenant. He was never inducted nor admitted as non-occupancy tenant by the defendants. The deceased defendant, Brahmi Devi after the death of her husband and Rajput by caste was a Pardanashin lady and Shri Daulat Ram, father of defendant No.2 while acting her General Power of Attorney (Mukhtiar-e-Aam) played fraud and by dominating her Will, executed a gift deed of suit land in favour of his son, defendant No.2 and nephew defendant No.3. On coming to know about this, she challenged the gift deed in civil Suit No.434 of 1982, R.B.T. No.442 of 1984 in the Court of Sub Judge, Amb. Being an old lady and widow, she compromised the suit. Pursuant to that the gift of suit land to the extent of 1/3rd share in favour of defendant No.3 was cancelled and the decree to the extent of 1/3rd share in the suit land was passed in her favour. 6. As regards the entries in revenue record showing Matabu, the Predecessor-in-interest of plaintiffs in possession of the suit land in the capacity of non-occupancy tenant, the same have been claimed to be wrong. Similar is the version of the 2nd defendant in written statement filed separately to the suit. 7. 6. As regards the entries in revenue record showing Matabu, the Predecessor-in-interest of plaintiffs in possession of the suit land in the capacity of non-occupancy tenant, the same have been claimed to be wrong. Similar is the version of the 2nd defendant in written statement filed separately to the suit. 7. The proforma defendants have admitted the claim of the plaintiff as laid in the plaint. 8. Learned trial Court has arrived at the conclusion that the entries in revenue record showing the predecessor-in-interest of the plaintiffs in possession of the suit land as non-occupancy tenant are without any basis and as such, dismissed the suit while placing reliance on the evidence produced by the defendants. 9. Learned lower appellate Court on the basis of evidence available on record and also produced by the parties during the pendency of appeal by way of additional evidence, has held that the revenue entries in jamabandis for the year 1952-53 pertaining to the suit land bearing khasra No.1638 (old), 1936 (new) Ex.A-1, again for the year 1952-53 pertaining to suit land bearing khasra No.1641 (old), khasra No.1939 (new) Ex.A-2, for the year 1956-57 Ex.A-3/Ex.A-4 as legal and valid being constant and showing Matabu, the predecessor-in-interest of the plaintiffs in possession of the suit land on payment of Battai Nisfi i.e. handing over half of the produce in the shape of rent to the owners. The change in the revenue entries as per jamabandi for the year 1966-67, Ex.D-3 showing the deceased defendant Brahmi in possession of the suit land as wrong and such revenue entries were held to be stray entries, because the Patwari entered the rapat Ex.D-1 on October 21, 1968 in Rojnamcha showing the change in possession qua the suit land and such change was not reflected in the subsequent jamabandi for the year 1971-72 Ex.P-3 and again Matabu was shown in possession of the suit land on payment of rent, i.e. handing over half of the produce of suit land to the owners. The attestation of mutation Ex.A-6 in favour of deceased defendant Brahmi Devi on the basis of judgment and decree passed by Sub Judge, Amb was also declared illegal, null and void for the reason that neither the plaintiffs nor their predecessor-in-interest was a party to that suit nor associated at the time of attestation of the same. 10. The attestation of mutation Ex.A-6 in favour of deceased defendant Brahmi Devi on the basis of judgment and decree passed by Sub Judge, Amb was also declared illegal, null and void for the reason that neither the plaintiffs nor their predecessor-in-interest was a party to that suit nor associated at the time of attestation of the same. 10. I have heard Shri N.K. Thakur, learned Senior Advocate assisted by Mr. Surender Kumar on behalf of the appellants/defendants and Shri H.K. Bhardwaj, learned counsel representing the plaintiffs-respondents. 11. On behalf of the defendants, it is forcefully contended that the defendants having been proved the owners in possession of the suit land as per the entries in Khasra Girdawari Ex.D-2 and also the jamabandi for the year 1966-67 Ex.D-3. Such entries came to be reflected till the year 1971-72 when the predecessor-in-interest of the plaintiffs, Matabu was shown in possession as non-occupancy tenant, however, without any basis. The lower appellate Court has presumed the creation of tenancy erroneously while decreeing the suit. According to learned Senior Advocate, the learned lower appellate Court has mis-read and misconstrued the evidence available on record. 12. On the other hand, on behalf of the plaintiffs, it is contended that the constant entries in the revenue record showing their predecessor-in-interest in possession of the suit land and on coming into being the H.P. Tenancy and Land Reforms Act, he became owner of the suit land by way of conferment of proprietary rights, there is no question of the defendants to claim themselves to be owners in possession of the suit land merely on the basis of a stray entry in jamabandi for the year 1966-67 and khasra girdawari from Kharif, 1966 to Ravi, 1971. According to learned counsel, the lower appellate Court has appreciated the evidence available on record in its right perspective and rightly decreed the suit. 13. As noticed supra, the only legal question which arises for consideration in this appeal is whether the lower appellate Court has mis-read and misconstrued the evidence available on record while decreeing the suit. Since the present is a case of reversal of the judgment and decree passed by the trial Court, therefore, the evidence comprising oral as well as documentary, has been thoroughly looked into. Since the present is a case of reversal of the judgment and decree passed by the trial Court, therefore, the evidence comprising oral as well as documentary, has been thoroughly looked into. The attestation of mutation No.3611, Ex.A-6 on 28.4.1986 in favour of deceased defendant Brahmi Devi has resulted in accruing cause of action in favour of the plaintiffs for filing the suit. The mutation has been attested pursuant to judgment and decree passed in case No.434/82 RBT No.442/84. The judgment in this suit is Ex.R-2. The judgment reveals that the same is dated 31.10.1986 and passed by the then Sub Judge 1st Class, Amb, Shri M.R. Chauhan, whereas, its date in the mutation Ex.A-6 below column No.13 has been reflected as 25.4.1985 and the name of Sub Judge Shri V.K. Gupta. The fact, however, remains that this is the judgment passed in the same civil suit which finds mention in Ex.A-6. In case this was not the judgment, the defendants would have produced in evidence the other judgment, if any, passed by Shri V.K. Gupta, the then Sub Judge on 25.4.1985. Above all, except raising a point in the grounds of appeal, no arguments qua this aspect were addressed at the time of hearing in this appeal. Not only this, but even in the written statement also, the number of the suit finds mention as ‘434/82 RBT No.442/84’. 14. The old khasra Nos. of the suit land were 1939 and 1936. The same as per Parcha Jamabandi Ex.P-4 and Ex.P-5 were changed to khasra Nos. 4141 and 4147 respectively. The revenue entries in jamabandi for the year 1952-53 qua the suit land bearing khasra No.1638 Ex.A-1, again for the year 1952-53 qua the suit land bearing khasra No.1639 Ex.A-2, for the year 1956-57 qua the suit land bearing 1641 Ex.A-3 and again for the year 1956-57 qua suit land bearing khasra No.1638 Ex.A-4 reveal that the same was in the ownership of the owners, whereas, in possession of Matabu, predecessor-in-interest of the plaintiffs on payment of rent, i.e. half of the produce of the suit land. The change in the entries as per jamabandi for the year 1966-67 and the girdawari for Kharif, 1966 to Ravi, 1971 Ex.D-2 is without any basis as the defendants have failed to prove that such change in the revenue record came to be incorporated pursuant to order passed by the competent revenue authority. The change in the entries as per jamabandi for the year 1966-67 and the girdawari for Kharif, 1966 to Ravi, 1971 Ex.D-2 is without any basis as the defendants have failed to prove that such change in the revenue record came to be incorporated pursuant to order passed by the competent revenue authority. Such change was thus rightly rectified by the Patwari, halqua in Rapat Rojnamcha Ex.DW-2/A(Ex.D-1) showing the suit land in possession of Shri Matabu, the predecessor-in-interest of the plaintiffs. I am in agreement with the findings recorded by the learned lower appellate Court that the report to this effect was made by the Patwari concerned on the basis of verification qua the status of suit land on the spot. If no follow up action was taken about such change in the subsequent khasra girwari, the plaintiffs cannot be held responsible for such lapse. It is, however, pursuant to the rapat Ex.DW-2/A (Ex.D-1), Shri Matabu, the predecessor-in-interest of plaintiffs came to be recorded in possession of the suit land as per the entries in the jamabandi Ex.P-3 for the year 1971-72 and Ex.P-1 & Ex.P-2 for the year 1982-83. The entries in remarks column of Ex.P-1 and Ex.P-2, however, reveal that on death of Matabu, the mutation of the suit land came to be entered in the name of plaintiffs and his other legal heirs. In jamabandi Ex.P-1, under remarks column 2nd entry qua attestation of mutation No.3611 (Ex.A-6) under challenge in the suit is in favour of deceased defendant, Brahmi Devi. Such entries have rightly been held to be illegal, null and void by the learned lower appellate Court being made behind the back of the plaintiffs and other legal heirs of deceased Matabu and on the basis of a judgment and decree in which they were not party. 15. The documentary evidence produced by the plaintiffs is thus cogent, convincing and reliable and leads to the only conclusion that their predecessor-in-interest, Matabu was in possession of the suit land as non-occupancy tenant and coming into being the H.P. Tenancy and Land Reforms Act, he became owner on conferment of proprietary rights. On his death, mutation No.3327, Ex.A-5 came to be attested on 17.1.1985 in favour of the plaintiffs and other legal heirs of deceased Matabu. No doubt, they have also challenged this document, however, they failed to produce any evidence to substantiate their claim. 16. On his death, mutation No.3327, Ex.A-5 came to be attested on 17.1.1985 in favour of the plaintiffs and other legal heirs of deceased Matabu. No doubt, they have also challenged this document, however, they failed to produce any evidence to substantiate their claim. 16. If coming to the oral testimony of deceased plaintiff, Kishan Chand and PW-2, Kewal Singh, is sufficient to come to the conclusion that deceased Matabu was in continuous possession of the suit land being non-occupancy tenant. On the other hand, the defendants have miserably failed to prove that deceased Brahmi Devi was owner in possession of the suit land because her attorney, Sudesh Kumari, DW-1 has stated that it is her husband who had been looking after the suit land, whereas, it has come in the written statement that it is Shri Daulat Ram, her General Power of Attorney, who had been maintaining the affairs of the suit land. Not only this, but DW-3, Ramesh Chand no doubt states that deceased defendant Brahmi Devi and Prittam remained in possession of the suit land and he has never seen Matabu in possession of the suit land, but in cross-examination, he clarified that it is Daulat Ram who had been looking after the suit land. This Daulat Ram is none else, but father of defendant No.2, Prittam Singh. The oral evidence produced by the defendants is vague, cryptic and not sufficient and convincing to prove that it was deceased Brahmi Devi who was owner in possession of the suit land and Matabu never remained in possession thereof being non-occupancy tenant. 17. The re-appraisal of the oral as well as documentary evidence leads to the only conclusion that learned lower appellate Court has appreciated the same in its right perspective and rightly decreed the suit. Therefore, no legal issue much less the substantial question of law arises for consideration in this appeal and the same thus deserves dismissal. 18. In view of the foregoing reasons, this appeal fails and the same is dismissed. Records be sent back.